Friday, March 30, 2018

Presidential - A Quick Note on Pardoning Witnesses

 Arising From Trump and His Pardons
A RICO Monopoly game?
Enough "Get out of jail free cards" for everyone in the criminal enterprise?

There is growing pressure on Donald Trump as an individual and, more broadly, on both the President's family, the other oligarchs and the "grifters" now installed in the Executive Branch. Illuminated by still dim light of guarded optimism we can already see the slow grind of established functions of the democracy grinding away at the entire collection of "deplorables" currently infesting the White House.

Fortunately, Fat Daddy just signs them. He doesn't need to actually read one of these.[image]

The issue of Trump's plans for issuing tactical Presidential Pardons is no longer a mere speculation. As he becomes more and more desperate to defend himself, granting such pardons will grow more and more desperately tempting.

Based on the Constitutional gravity of this likelihood, MeanMesa thought it might be helpful to address some of the questions inevitably associated with the pardon process. We can approach the matter by the numbers.

1. What are the details of Presidential pardon powers?

The "Pardon Power" is derived directly from the US Constitution.

United States Constitution
Article II, Section 2 [1st Clause]

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

The last five words of this Constitutional clause are important. The current speculation [and media reporting] indicates that the President has apparently considered granting pardons to his old campaign manager, Paul Manafort, and his initially installed National Security Adviser, General Michael Flynn.

Both individuals have very significant criminal exposure thanks to the work of the Special Counsel, Robert Mueller. A pardon granted to either individual could protect him from prosecution, but such a pardon would also undercut Mueller's investigation -- especially any reliance on testimony under oath at a trial in which the President might be a defendant.

Confronted with these indictments, Flynn has already "flipped," agreeing to cooperate with the investigation. Manafort, facing even more serious indictments, is pretty clearly holding out for a possible pardon before he might receive a very long prison sentence.

2. Is it too late for Trump to benefit from issuing a pardon to Flynn?

If Trump pardons Flynn at this point, the Special Counsel's investigators could still use all the information Flynn has given them already, but the Special Counsel could, theoretically, no longer rely on Flynn testifying at trial. Flynn "flipped" because he had such serious criminal exposure. Such a pardon would eliminate this incentive for him to testify at trial.

Manafort is not cooperating with the Special Counsel, so this timing would not significantly alter the prospects of his "flipping" and agreeing to testify. Paul Manafort is facing the prospect of dying from old age in a Federal Prison if he is convicted of even part of the charges currently brought against him.

3. Does receiving a Presidential pardon require that its recipient be convicted first?

While this may or may not be an element of "established law," it has been done successfully before -- as recently as Ford's pardon of Richard Nixon. Even beyond the likely complex arrangements to "un-do" a cooperation based plea agreements already in effect, such an act by the President would almost certainly meet the legal test of obstruction of justice, historically a political threat requiring the Congressional remedy of impeachment.

The leading Supreme Court case is Ex parte Garland (1867). Justice Stephen J. Field, writing for the Court in a 5-4 decision, held that the President's pardoning power is ''unlimited,'' and ''It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after conviction and judgment.''

In Murphy v. Ford (1975), a Federal District Court in Michigan rejected a suit for a declaratory judgment that President Ford's unconditional pardon of Richard M. Nixon was unconstitutional. The court found that the President had the constitutional power to grant a pre-indictment pardon, citing Ex parte Garland in its support. [Excerpted]

In light of the essentially criminal nature of the Republican majority controlling Congress, any coercion based on this political exposure to an obstruction impeachment can probably be ignored. Still, MeanMesa suspects that Vice President Pence, seeing a possible path to full White House power for himself, has considered taking every possible opportunity to inspire this remedy in the Congress, although such an ambitious scheme could prove to be quite dangerous if it were unsuccessful.

4. Does the "...except in cases of impeachment..." proviso in the Constitution become actionable before an official impeachment proceeding begins in the Congress?

This question reveals the gravity of the truly dark nature of this President's character. So long as impeachment has not begun in the Congress, Trump could issue a pardon for one of his felonious fellow travelers who could then commit a crime quite immune from Federal prosecution.

The clear expectation of the Constitution's authors was that an elected President would have such a quality of being -- and respect for law -- that such a course would be unthinkable. In this case neither restraint would be a reasonable expectation.

Further, the Constitution's authors also incorporated a "back up" plan to guarantee such an abuse of Presidential power, in this case the provision anticipating impeachment by a Congress also possessing such a "quality of being" and "respect for law." Again, given the criminal nature of the Republicans -- so far obsessively controlling Congress -- such an expectation may also be seriously over optimistic.